These pandemic-related benefits were considered income replacement under Ontario law
The Ontario Superior Court of Justice ruled that Canada Emergency Response Benefit (CERB) and Canada Recovery Benefit (CRB) payments received by a plaintiff in a motor vehicle accident case must be deducted from the past income loss award, as these benefits were considered income replacement under Ontario's Insurance Act.
In Ferreira v. Hopper, 2024 ONSC 5385, the plaintiff, Jason Ferreira, was involved in a car accident and subsequently suffered soft tissue injuries to his neck and back. Although liability was admitted before trial, the issue of damages was brought before a jury. The jury awarded Ferreira $129,000 in total damages, which included $100,000 for past loss of income, $25,000 for non-pecuniary general damages, and $4,000 for future medical and rehabilitation costs.
The question before the Superior Court was whether CERB and CRB payments received by Ferreira should be deducted from the jury's award for past income loss. Under section 267.8(1) of Ontario’s Insurance Act, certain collateral benefits, including income replacement benefits, must be deducted from tort awards for loss of income or earning capacity.
In its analysis, the court acknowledged that CERB and CRB payments are forms of income replacement consistent with the Supreme Court of Canada’s reasoning in MB v British Columbia, 2003 SCC 53. The key issue was whether these payments were made “in respect of an incident” as required by the Insurance Act. Ferreira’s counsel argued that the benefits were unrelated to the motor vehicle accident, while the defence contended they were.
The court found that Ferreira was ineligible to receive CERB or CRB benefits unless he had stopped working due to COVID-19 rather than the accident. However, at trial, Ferreira testified that his inability to work from the accident date until the trial was due entirely to injuries from the collision, not the pandemic. Given this inconsistency, the court concluded that the CERB and CRB payments were deductible from the jury's award for past income loss.
Ultimately, the court ruled that the $19,600 Ferreira received in CERB and CRB payments must be deducted from the $100,000 awarded for past income loss.
